Citation Nr: 0521510
Decision Date: 08/09/05 Archive Date: 08/19/05
DOCKET NO. 95-38 804 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. What evaluation is warranted for degenerative disc
disease of the lumbar spine, formerly described as chronic
low back pain, from July 22, 1997?
2. What evaluation is warranted for arthritis of the left
knee with limitation of motion from June 1, 1997?
3. What evaluation is warranted for radiculopathy of the
left lower extremity from December 6, 2001?
4. What evaluation is warranted for multiple operative scars
of the left knee from January 23, 1998?
5. Entitlement to an extraschedular evaluation for residuals
of a left knee meniscectomy and anterior cruciate ligament
repair, currently schedularly evaluated as 30 percent
disabling.
6. Entitlement to an effective date earlier than February
27, 2002, for a total disability rating for compensation
purposes based on individual unemployability.
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The veteran served on active duty from May 1978 to October
1982.
This matter was most recently before the Board of Veterans'
Appeals (Board) in February 2004, at which time it was
remanded to the Department of Veterans Affairs (VA) Regional
Office (RO) in New York, New York, through the VA's Appeals
Management Center (AMC) in Washington, DC, so that additional
development could be undertaken. Following attempts to
complete the requested actions, the case has since been
returned to the Board for further review.
On remand, the AMC by way of rating action entered in
December 2004 granted entitlement to service connection for
radiculopathy of the left lower extremity, assigning a 10
percent evaluation from December 6, 2001; granted service
connection for a patellofemoral syndrome of the right knee,
assigning a 10 percent evaluation from January 23, 1998;
granted service connection for multiple operative scars of
the left knee, assigning a noncompensable evaluation from
January 23, 1998; granted entitlement to a total disability
rating for compensation purposes based on individual
unemployability (TDIU), effective from February 27, 2002; and
found the veteran basically eligible to Dependents'
Educational Assistance from February 27, 2002.
The issues regarding what ratings are warranted for multiple
operative scars of the left knee from January 23, 1998, and
left lower extremity radiculopathy from December 6, 2001, are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the AMC. In addition, in response to
the December 2004 rating action the veteran has filed a
notice of disagreement with the effective date assigned for
his TDIU rating. Such matter is also addressed in the Remand
portion of this document, pursuant to Manlincon v. West, 12
Vet.App. 238 (1999).
This case was previously advanced on the Board's docket and
expedited consideration has been afforded.
FINDINGS OF FACT
1. From July 22, 1997, to the present, not more than a
moderate intervertebral disc syndrome is disclosed prior to
September 23, 2002, nor is there demonstrated to be a severe
lumbosacral strain or a severe limitation of motion of the
lumbar spine prior to September 26, 2003.
2. Since September 23, 2002, incapacitating episodes due to
lumbar degenerative disc disease have not occurred more than
two weeks per year.
3. Effective September 26, 2003, lumbar ankylosis or
limitation of lumbar motion to the required extent is not
demonstrated, and lumbar pain or functional loss resulting in
additional limitation of lumbar motion or a marked
interference with employment or frequent periods of hospital
care is not shown.
4. From June 1, 1997, to the present, extension of the knee
is not shown to be limited to more than to 10 degrees, and
there is no consistent showing of left knee flexion below 100
degrees; findings of ankylosis or other pathology are absent;
and a marked interference with employment or frequent periods
of hospital care due to left knee arthritis are not
indicated.
5. A marked interference with employment or frequent periods
of hospital care relating to the veteran's service-connected
residuals of a left medial meniscectomy and anterior cruciate
repair are not indicated during the period from February 2,
1995, to the present.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a rating in excess of
20 percent for degenerative disc disease of the lumbar spine,
formerly chronic low back pain, for the period from July 22,
1997, to the present, have not been met. 38 U.S.C.A.
§§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§ 4.71a, Diagnostic Codes 5293, 5295 (2001) 38 C.F.R.
§§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10,
4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2004).
2. The criteria for the assignment of a rating in excess of
10 percent for arthritis of the left knee with limitation of
motion for the period from June 1, 1997, to the present, have
not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326,
4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Code 5010-5261 (2004).
3. The criteria for the assignment of an extraschedular
evaluation for service-connected residuals of a left knee
meniscectomy and anterior cruciate ligament repair for the
period from February 2, 1995 to the present, have not been
met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1,
4.2, 4.3, 4.6, 4.7, 4.10 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As noted above, this matter was most recently remanded in
February 2004 for additional evidentiary and procedural
development. In addition, this matter was subject to one or
more other remands from the Board. All of the actions sought
by the Board by its prior remands appear to have been
completed in full as directed and it is of noted that the
veteran does not contend otherwise. See Stegall v. West, 11
Vet.App. 268, 270-71 (1998).
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law on
November 9, 2000, subsequent to the initiation of the
original claim forming the basis of the instant appeal. The
VCAA significantly added to the statutory law concerning VA's
duties when processing claims for VA benefits by redefining
the obligations of VA with respect to its duty to assist a
claimant, and including an enhanced duty to notify a claimant
as to the information and evidence necessary to substantiate
a claim for VA benefits. To implement these provisions VA
promulgated regulations now codified, in pertinent part, at
38 C.F.R. §§ 3.102, 3.159, 3.326(a). The applicable law and
regulations have been the subject of holdings of various
Federal courts.
Under the changes effectuated by the VCAA, VA first has a
duty to provide an appropriate claim form, instructions for
completing it, and notice of information necessary to
complete the claim if it is incomplete. 38 U.S.C.A. § 5102;
38 C.F.R. § 3.159(b)(2). In this case, there is no issue as
to providing an appropriate application form or completeness
of the application.
Second, VA has a duty to notify the veteran of the
information and evidence needed to substantiate and complete
a claim, notice of what part of that evidence is to be
provided by the claimant, and notice of what part VA will
attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b)(1); Charles v. Principi, 16 Vet.App.
370, 373-74 (2002); Quartuccio v. Principi, 16 Vet.App. 183,
187 (2002). Written notice of the foregoing was provided, in
part, to the veteran by the RO through its May 2002 letter to
him. Further, more complete notice was furnished to him
through the Board's correspondence of December 2002 and a
February 2004 letter from the AMC, as well as through various
supplemental statements of the case on file. To that extent,
VA's duties established by 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b)(1) have been satisfied.
Third, VA has a duty to assist claimants in obtaining
evidence needed to substantiate a claim. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159. In this case, pertinent
examination and treatment records filling four large claims
folders have been submitted by the veteran or otherwise
developed by VA. In addition, multiple VA medical
examinations have been afforded the veteran and the reports
of those evaluations have been associated with his claims
folders. No other examination or treatment records necessary
for a review of the merits of the issue presented are known
to VA and it is of note that the veteran has not requested
further assistance from VA in this regard. See, e.g., the
veteran's January 2004 correspondence stating that he had
nothing else to submit. Thus, it is concluded that all
assistance due the veteran has been rendered.
In Pelegrini v. Principi, 18 Vet.App.112 (2004), it was held
that the applicable statute and regulation provide for pre-
initial-RO adjudication notice of the VCAA. It was, however,
specifically recognized that, where notice was not mandated
at the time of the initial RO decision, VA did not err in
failing to providing such notice specifically complying with
section 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
because an initial RO adjudication had already occurred.
Instead, the veteran was found to have the right to be
provided the requisite VCAA content-complying notice and
proper subsequent VA process at some time during the
appellate process. In this instance, while the initial RO
adjudication preceded the enactment of the VCAA, full notice
of the VCAA followed with readjudication by the RO and notice
to the veteran, as provided by Pelegrini. Therefore, to
decide the appeal would not be prejudicial error to the
veteran-claimant under Bernard v. Brown, 4 Vet.App. 384
(1993).
To the extent that VA has failed to fulfill any duty to
notify and assist the veteran, the Board finds that error to
be harmless. Of course, an error is not harmless when it
"reasonably affect(s) the outcome of the case." ATD Corp. v.
Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this
case, however, because there is not a scintilla of evidence
that any failure on the part of VA to further comply with the
VCAA reasonably affects the outcome of this case, the Board
finds that any such failure is harmless. While perfection is
an aspiration, the failure to achieve it in the
administrative process, as elsewhere in life, does not,
absent injury, require a repeat performance. Miles v. M/V
Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).
What Rating is for Assignment for Degenerative Disc Disease
of the Lumbar Spine (Formerly Chronic Low Back Pain) from
July 22, 1997?
Disability evaluations are determined by the application of a
schedule of ratings which is based upon an average impairment
of earning capacity. 38 U.S.C.A. § 1155. Separate
diagnostic codes (DCs) identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Service connection for chronic low back pain, secondary to
residuals of a medial meniscectomy and anterior cruciate
repair of the left knee, was established in an October 1997
rating decision, and a 10 percent rating under DC 5299-5295
was assigned, effective from July 22, 1997. By virtue of the
notice of disagreement filed in November 1997, the veteran
challenged the disability rating initially assigned by the
RO. As such, there is presented an "original claim" as
contemplated by Fenderson v. West, 12 Vet.App. 119 (1999) (at
the time of an initial rating, separate or "staged" ratings
may be assigned for separate periods of time based on the
facts found), as opposed to a claim for an "increased
rating."
In an April 2000 rating decision the rating assigned for
chronic low back pain was increased to 20 percent, effective
from July 22, 1997. That rating remains in effect through
the present time, although as noted above, the RO in rating
action of December 2004 recharacterized such disability as
degenerative disc disease of the lumbar spine.
The criteria used to evaluate intervertebral disc disease and
spinal disorders in general were amended during the course of
the instant appeal, first on September 23, 2002, and then
again on September 26, 2003. See 68 Fed. Reg. 51454-51456
(2003); 67 Fed. Reg. 54345 (2002). Under Kuzma v. Principi,
341 F.3d 1327 (Fed. Cir. 2003), only the old rating criteria
apply to the period prior to the date of the change in law,
and only the new rating criteria apply to the period after
the date of the change in law.
Under 38 C.F.R. § 4.71a, DC 5293, which was in effect prior
to September 23, 2002, a 20 percent evaluation was for
assignment where an intervertebral disc syndrome was
moderately disabling, with recurring attacks. A 40 percent
rating was warranted for severe symptoms with recurring
attacks and little intermittent relief.
Under DC 5295, a 20 percent rating was warranted where there
was muscle spasm on extreme forward bending, or unilateral
loss of lateral spine motion in a standing position. A 40
percent rating was warranted if the lumbosacral strain was
severe with listing of the whole spine to the opposite side,
a positive Goldthwait's sign, marked limitation of forward
bending in a standing position, loss of lateral motion with
osteoarthritic changes, or narrowing or irregularity of the
joint space, or some of the above with abnormal mobility on
forced motion. 38 C.F.R. § 4.71a, DC 5295.
Under DC 5292, a moderate limitation of lumbar motion
warranted a 20 percent rating. 38 C.F.R. § 4.71a, DC 5292.
A 40 percent rating was assignable or severe limitation of
lumbar motion. Id.
Under the revised regulations, an intervertebral disc
syndrome is evaluated (preoperatively or postoperatively)
either on the basis of the total duration of incapacitating
episodes over the past 12 months, or under a general rating
formula for diseases and injuries of the spine, although
during the period from September 23, 2002, to September 25,
2003, the only criterion was that of incapacitating episodes.
See 38 C.F.R. § 4.71a, DC 5243 (2004). An incapacitating
episode is defined as a period of acute signs and symptoms
due to intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician. Id.
Under the general rating formula for diseases and injuries of
the spine, with or without symptoms such as pain (whether or
not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease, a 20
percent rating is assigned where forward flexion of the
thoracolumbar spine is greater than 30 degrees but not
greater than 60 degrees; or, the combined range of motion of
the thoracolumbar spine is not greater than 120 degrees; or,
muscle spasm or guarding is severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis. For a 40 percent
evaluation, there is required to be a showing of forward
thoracolumbar flexion limited to 30 degrees or less; or,
where there is favorable ankylosis of the entire
thoracolumbar spine.
Regardless of the criteria, when assigning a disability
rating it is necessary to consider functional loss due to
flare-ups, fatigability, incoordination, and pain on
movements. See DeLuca v. Brown, 8 Vet.App. 202, 206-7
(1995). Under 38 C.F.R. §§ 4.40 and 4.45, the rating for an
orthopedic disorder must reflect functional limitation which
is due to pain, as supported by adequate pathology and
evidenced by the visible behavior of the claimant undertaking
the motion. Weakness is also as important as limitation of
motion, and a part which becomes painful on use must be
regarded as seriously disabled. A little used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence of normal callosity, or the like.
Evidence on file shows that, on examination in May 1997, the
veteran complained of pain and stiffness of the spine and of
periodic flare-ups, particularly with lifting, with there
being a moderate increase in symptoms during such flares. A
moderate functional loss was noted in relation to the
veteran's usual occupation and daily activities. On
evaluation, he was able to stand erect, although he could not
stand on his heels and toes. Lumbar pain was noted at 70
degrees of flexion, with pain resulting in a moderate
limitation following repetitive use or flare-ups. No
postural abnormality, fixed deformity, or musculature problem
was indicated; there was shown to be some numbness of the
toes of the left foot. X-rays in December 1995, as well as
October and November 1997 were either negative or within
normal limits. A June 1997 lumbar magnetic resonance imaging
(MRI) identified levoscoliosis at L-5, straightening of the
lumbar lordosis suggestive of muscle spasm or splinting, and
minor disc bulges from L3-4 through L5-S1 without stenosis.
The diagnosis was chronic low back pain. A treating
physician in July 1997 found the veteran to be totally
disabled, citing disabilities of both knees, the low back,
and the left shoulder.
Noted by a private examiner in October 1997 was that the
veteran had decreased sensation over the S1 dermatome on the
left. A diagnosis of lumbar radiculopathy was offered. On
examination in January 1998, no neurological deficit was
noted to be present. An MRI of the lumbar spine in January
1998 culminated in entry of an impression of straightening of
the lumbar lordosis. A private treating physician noted in
January 1998 that the veteran was unequivocally disabled, due
to disorders of the right and left knees, right shoulder, and
his lumbar spine. In March 1998, there was noted to be a
patchy decrease in sensation over the left S1 dermatome, with
no ankle jerks. An electromyogram was performed in April
1998, findings from which were found to be within normal
limits and otherwise showing no electrodiagnostic evidence of
radiculopathy or peripheral neuropathy. The veteran's
private physician reported in March 1999 that bilateral knee
and back disorders, as well as other, unspecified illnesses,
rendered him unemployable.
VA examination in March 2000 disclosed tenderness at the
extreme point of extension, as well as some spasm. No X-rays
of the low back were attempted at that time. The diagnosis
was lumbosacral arthritis. His private treating physician
reported in November 2000 that there was bilateral
paravertebral muscle spasm and decreased range of motion,
with a mild impairment of straight leg raising. The same
physician noted in March 2002 that lumbar radiculopathy and a
left knee injury caused the veteran to be unable to find
employment.
On a VA examination in June 2002, forward flexion was
possible to 80 degrees, with extension from 0 to 25 degrees.
Lateral bending was to 20 degrees, bilaterally, and pain on
motion, muscle spasm, and tenderness were clinically evident.
VA examination in April 2003 showed forward lumbar flexion to
be limited to 45 degrees, with extension to minus five
degrees. Lateral bending was to 10 degrees bilaterally and
rotation to the right was to 15 degrees, with rotation to the
left to 10 degrees. The veteran was able to heel/toe walk
and a limp of his left lower extremity was attributed to knee
disablement. No motor or sensory deficit was present; there
was shown to be tenderness of the L3-4 and L5-S1 paraspinals.
The diagnoses were of a lumbosacral facet syndrome secondary
to scoliosis, rule out instability; and a possibility of left
L-5 radiculopathy secondary to root compression and secondary
to a herniated nucleus pulposus, but not evident in the prior
MRI of 1997. There were no objective signs of nerve
compression on examination.
Records of VA outpatient treatment indicate that, in July
2003, the veteran's low back pain was noted to cause
intermittent radiation to both legs.
A computed tomographic scan of the spine in August 2003
revealed mild diffuse disc bulges at L4-5 and L5-S1, with
possible impingement on the left L-5 nerve root. Further VA
orthopedic examination in March 2004 disclosed forward
flexion of the lumbosacral spine was to 40 degrees, extension
to 20 degrees, bilateral lateral bending to 45 degrees, and
rotation to 35 degrees bilaterally. Additional limitation
was noted to be the result of pain and a lack of endurance.
There was bilateral lumbosacral paraspinal tenderness, with a
somewhat stiff posture. Incapacitating episodes were noted
to occur four to five times yearly, each episode reportedly
lasting two or three days. The examiner opined that it was
less likely than not that the veteran's service-connected low
back disorder resulted in a marked interference with
employment.
In a March 2004 addendum, the April 2003 VA examiner noted
that severe spinal spasms of the veteran were intermittent
occurrences and that there were a total of two weeks of
incapacitation yearly due to back pain. The examiner
reiterated that sciatic neuropathy was but a possibility,
given the absence of any confirmatory finding on the prior
MRI in 1997 and the absence of any objective signs of root
compression, such as power loss or a reflex or sensory
abnormality.
For the period prior to September 26, 2003, the preponderance
of the clinical data are against finding a disability level
in excess of that contemplated by the 20 percent rating
previously assigned by the RO under DC 5295. While there was
evidence of muscle spasm on extreme extension, no medical
evidence is presented identifying a severe lumbosacral strain
with listing of the whole spine to the opposite side, a
positive Goldthwait's sign, marked limitation of forward
bending in a standing position, or narrowing or irregularity
of the joint space, or some of the above with abnormal
mobility on forced motion.
Lumbar motion was noted by an examiner in October 1997 to be
within normal limits. A private physician, however, noted a
decreased range of lumbosacral motion that same month. In
March 2000, a very limited impairment of low back motion was
shown on examination. A like reduction in range of motion
was documented beginning in June 2002, and continuing
thereafter, but that reduction is not so significant as to
warrant a finding that that there was present at any point
during the relevant time frame a severe limitation of motion
of the lumbar spine, such as would warrant the assignment of
more than a 20 percent rating under DC 5292. There likewise
is not shown, prior to September 26, 2003, ankylosis of the
lower spine or a vertebral fracture ratable under DCs 5286,
5286, or 5289.
As well, for the period prior to September 23, 2002, not more
than a moderate intervertebral disc syndrome was shown. That
is, severe symptoms with intermittent relief following
recurring attacks were not shown.
Beginning on September 23, 2002, and thereafter, it is not
demonstrated that incapacitating episodes, as defined by DC
5293, were more frequent than two weeks in duration during
the previous 12 months. As such, not more than a 20 percent
rating is assignable under DC 5293, later renumbered as DC
5243.
Under the general rating formula for spinal disorders,
effective from September 26, 2003, neither ankylosis of the
entire thoracolumbar spine, nor a reduction in lumbar motion
of such proportions as to warrant the assignment of a
schedular evaluation in excess of 20 percent was shown.
The symptoms which are attributable to the veteran's service-
connected low back pain are not shown to be of such a nature
or severity or to result in such functional limitations as to
warrant a schedular evaluation in excess of the previously
assigned 20 percent rating at any point during the pertinent
time period. Fenderson. Furthermore, no increase in the
schedular evaluation is warranted on the basis of pain and
functional loss due to flare-ups, fatigability,
incoordination, and painful motion. Pain and a lack of
endurance are indicated, with the veteran's back pain being
shown to be the more significant factor, albeit in
fluctuating degrees of intensity and consistency. Notation
is made that it was set forth in October 1997 that the
veteran's pain resulted in a moderate limitation during
flares. The record, however, does not otherwise quantify the
existence and degree of any additional limitation of motion
caused by pain and functional loss. Pain is listed criterion
of DCs 5293 and 5295, as well as the general rating formula
for spine disorders and the formula for rating of
intervertebral disc syndrome. In the absence of a showing
that pain or functional loss warrants the assignment of a
higher schedular evaluation for the veteran's lumbar disc
disease, it is determined that the assigned 20 percent rating
adequately compensates the veteran for the level of
impairment outlined by the evidence on file.
To accord justice in the exceptional case where the assigned
schedular evaluation is found to be inadequate, the Under
Secretary for Benefits or the Director of the Compensation
and Pension Service, upon field station submission, is
authorized to approve on the basis of the criteria set for in
this paragraph an extraschedular evaluation commensurate with
the average earning capacity impairment due exclusively to
the service-connected disability. 38 C.F.R. § 3.321(b)(1).
The governing norm in these exceptional cases is a finding
that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. Id.
Lacking in this case is any probative evidence that the
veteran's service-connected low back disorder alone is
productive of a marked interference with employment or
necessitates frequent periods of hospital care. While
certain types of employment involving heavy lifting and other
exertional activity may be limited as a result, only the
veteran himself has stated that he is unable to continue with
any type of employment, based solely on his back disorder and
such allegation is far outweighed by examination and
treatment records signifying that a marked interference with
employment is absent.
Postal service and Social Security data are not supportive of
the veteran's extraschedular entitlement, and no medical
professional has furnished finding or opinion to the effect
the veteran's lumbar disc disease and pain alone markedly
interferes with his pursuit of gainful employment. As well,
no period of hospital care for treatment of such disability
is shown at any time since July 1997. As such, it cannot be
reasonably concluded that assignment of a higher rating is
warranted on an extraschedular basis. See Bagwell v. Brown,
9 Vet.App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet.App.
218, 227 (1995).
In all, a preponderance of the evidence is against the
assignment of a schedular or extraschedular rating in excess
of 20 percent for degenerative disc disease of the lumbar
spine, formerly described as chronic low back pain.
What Rating is for Assignment for Arthritis of the Left Knee
with Limitation of Motion from June 1, 1997?
By a rating decision of October 1997, a separate grant of
service connection for arthritis of the left knee with
limitation of extension of the left leg was effectuated. At
that time, a 10 percent rating was assigned therefor under DC
5261, effective from June 1, 1997, and such rating has
remained unchanged since that time.
Under DC 5261, where extension of the leg is limited to 15
degrees, a 20 percent rating is assignable; where extension
is limited to 10 degrees, a 10 percent rating is assignable;
and where extension is limited to 5 degrees, a noncompensable
rating is for assignment. 38 C.F.R. § 4.71a, DC 5261.
Throughout the period from June 1997 to the present,
extension of the left knee joint is shown to be limited to
not more than 10 degrees. Fenderson. Following anterior
cruciate ligament reconstruction of the left knee in April
1997, there was a period of time in June 1997 when extension
was limited to 10 degrees, but a limitation to five degrees
of extension was indicated within the two-week period
immediately following that procedure. Extension was shown on
a VA examination in October 1997 to 10 degrees, but in
February 1998 no more than a 5 degree reduction from normal
extension was demonstrated. Furthermore, VA medical
examinations in May 1999 and March 2000 showed that extension
of the left knee was possible to minus 10 degrees. See
38 C.F.R. § 4.71a, Plate II (2004). VA examinations in June
2002 and April 2003 indicated that left knee extension was
possible to 0 degrees, albeit with additional, but
unspecified, limitations caused by pain, weakness, and lack
of endurance. As such, not more than a 10 percent rating is
shown to be for assignment from June 1997 to the present on
the basis of limited extension of the left knee joint. See
38 C.F.R. § 4.71a, DC 5261.
Regarding alternate rating criteria, the record reflects
that, since June 1997, limitation of flexion of the left knee
to less than 90 degrees is not consistently demonstrated,
such that a separate, compensable evaluation would be for
assignment under DC 5260. See VAOPGCPREC 9-2004, 69 Fed.
Reg. 59990 (2004) (providing for separate ratings under DCs
5260 and 5261). Other potentially applicable DCs providing
more than a 10 percent rating include the following: DC 5262
for nonunion or malunion of the tibula and fibula; DC 5256
for ankylosis of the knee; DC 5257 for subluxation or
instability; and DC 5275 for shortening of the bones of the
lower extremity. However, none of the foregoing is shown in
this instance to be part and parcel of the veteran's left
knee arthritis and utilization thereof cannot therefore be
made for purposes of analogous rating.
Remaining for consideration is whether any further increase
in the schedular evaluation for left knee arthritis is
warranted on the basis of 38 C.F.R. §§ 4.40, 4.45, 4.59 and
DeLuca. Pain on motion of the left knee joint is shown, but
pain is a listed criterion under DCs 5010 and 5003 as to the
rating of arthritis. Other indicated functional loss,
including that due to weakness, lack of endurance, and
flares, are not demonstrated to result in any additional,
quantifiable limitation of motion, such that a rating in
excess of 10 percent would be assignable. To that end, there
is no basis to increase the 10 percent rating currently
assigned for left knee arthritis on the basis of 38 C.F.R.
§§ 4.40, 4.45, 4.59 or DeLuca.
There is likewise absent from the record persuasive evidence
that the veteran's left knee arthritis, alone, has resulted
in a marked interference with employment or necessitated
frequent periods of hospitalization since June 1997. There
are opinions on file from the veteran's private treating
physician that his left knee disorder is very significant and
that it and other entities have rendered him unable to
continue with or otherwise find employment. Such opinions
are inclusive of all knee disorders including residuals of
the prior surgical repairs of the meniscus and anterior
cruciate ligament and the operative scarring, for which
separate grants of service connection have been established,
as well as disabilities wholly unrelated to the veteran's
left knee arthritis. Also of record is a March 2004 opinion
from a VA examiner to the effect that the veteran's left knee
disorder alone did not markedly interfere with his pursuit of
employment. As such, the evidence of record does not
identify significant factors specifically relating to the
veteran's left knee arthritis which would warrant an
increased disability rating on an extraschedular basis.
Based on the foregoing, it is concluded that the
preponderance of the evidence is against the assignment of an
initial schedular or extraschedular rating in excess of 10
percent for left knee arthritis with limitation of motion
from June 1, 1997, to the present.
Entitlement to an Extraschedular Rating for Residuals of a
Meniscectomy and Anterior Cruciate Repair of the Left Knee
By its decision of October 2000, the Board restored a 30
percent schedular rating for residuals of a left medial
meniscectomy and anterior cruciate ligament repair. The
Board denied entitlement to a schedular evaluation beyond the
30 percent level, but the Board remanded the issue of the
veteran's entitlement to an extraschedular evaluation.
From an historical perspective, the Board in February 1995,
assigned a 30 percent rating, but none greater, for the
disability in question for the period from July 1991 to April
1992, and denied entitlement to a rating in excess of 30
percent for the period after April 30, 1993. That February
1995 decision is final. 38 U.S.C.A. §§ 7103, 7104 (West
2002).
The sole question thus presented by this portion of the
appeal is whether the extraschedular criteria for the
assignment of an increased evaluation have been satisfied
during the applicable time frame. That is, whether the
disability at issue has required frequent periods of hospital
care or resulted in a marked interference with employment
from February 2, 1995, to the present. 38 C.F.R. § 3.321(b).
In this instance, the veteran was hospitalized in April 1997
for reconstruction of his left anterior cruciate ligament,
but no other hospitalization subsequent to February 1995 is
demonstrated for treatment of residuals of a left medial
meniscectomy and anterior cruciate ligament repair, including
subluxation or instability. That being the case, there is no
basis to conclude that the disability in question has
necessitated frequent hospitalization.
The record reflects that the veteran was awarded disability
benefits from the Social Security Administration (SSA) by a
decision of an Administrative Law Judge in May 1993,
effective from April 1992, based on "severe musculoskeletal
impairments." In March 1997, the veteran was advised that
he no longer qualified for SSA disability benefits, as it had
been determined that he was able to work. The veteran
appealed that determination, and in January 1998, an SSA
hearing officer determined that the veteran continued to be
disabled, citing not only the veteran's service-connected
left knee disability, but also disablement caused by
disorders of the right knee, left shoulder, and low back. To
that extent, the SSA determinations of record are not
dispositive of the question of whether the disability at
issue results in a marked interference with employment.
Also shown by the record is that the veteran was last engaged
in gainful employment as a mail handler with the United
States Postal Service (USPS). Information provided by the
USPS indicates that the veteran was advised of his proposed
removal from USPS employment in March 1994, due to his
continued absence without official leave and failure to
follow instructions. Facts were therein cited that the
veteran had been continuously absent from duty without
permission from October 1993 to March 1994 and that, although
he had been medically cleared in May 1993 to return to work
four hours per day after he had been out for an extended
period due to injury, he had failed to return to duty. In
March 1994, the veteran resigned from USPS employment.
Reference is also made to the prior discussion relating to
the opinions offered to date by VA and non-VA medical
professionals as to the existence of a marked interference
with employment. Such opinions, as noted previously herein,
lack specificity in terms of which left knee impairment does
or does not result in marked employment limitations. To that
extent, those opinions are not persuasive.
Based on the these considerations, the Board finds that a
preponderance of the evidence is against the veteran's claim
for an extraschedular evaluation for residuals of a left
medial meniscectomy and anterior cruciate ligament repair.
There is no basis for finding frequent periods of
hospitalization and the record preponderates against finding
that this disability alone has markedly interfered with his
employment. To the extent that the veteran contends
otherwise, his allegations as to extraschedular entitlement
regarding the disability herein at issue are not adequately
substantiated.
As a preponderance of the evidence is against the assignment
of an extraschedular rating for residuals of a left medial
meniscectomy and anterior cruciate ligament repair,
application of the benefit of the doubt rule is not in order
and the benefit sought on appeal is denied.
ORDER
A schedular or extraschedular rating in excess of 20 percent
for degenerative disc disease of the lumbar spine, formerly
characterized as chronic low back pain, is denied.
A schedular or extraschedular rating in excess of 10 percent
for arthritis of the left knee with limitation of motion is
denied.
An extraschedular evaluation for residuals of a left knee
medial meniscectomy and anterior cruciate ligament repair is
denied.
REMAND
As noted in the Introduction, while this case was in remand
status the AMC granted entitlement to service connection and
established separate ratings for radiculopathy of the left
lower extremity from December 6, 2001, and for multiple
operative scars of the left knee from January 23, 1998. Such
matters were previously at issue in connection with the
veteran's claims for initial ratings for his service-
connected low back and left knee disorders. In the absence
of any indication that the veteran is satisfied with the
ratings assigned therefor by the AMC in December 2004, or
that the AMC continued the appeal as to those issues by
including same in the supplemental statement of the case that
followed, remand is required for corrective action.
As well, the AMC in December 2004 granted entitlement to a
TDIU, effective from February 27, 2002. A notice of
disagreement as to the effective date assigned for the TDIU
was timely filed in February 2005. Inasmuch as a statement
of the case has yet to be prepared and furnished to the
veteran, remand pursuant to Manlincon is required.
Accordingly, this potion of the appeal is REMANDED for the
following actions:
1. The RO must issue a statement of the
case addressing entitlement to an
effective date earlier than February 27,
2002, for a TDIU. If, and only if, the
veteran files a timely substantive appeal
to this issue is this matter to be
returned for review by the Board.
2. The RO must ascertain whether the
veteran is satisfied with the December
2004 rating actions granting service
connection and separate ratings for left
lower extremity radiculopathy and
multiple left knee operative scars. If
he is not, then the RO must further
develop the claims for initial ratings
therefor, including but not limited to
the issuance of a supplemental statement
of the case, which must contain notice of
all relevant actions taken on the claims
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to those
issues. An appropriate period of time
should then be allowed for a response,
before the record is returned to the
Board for further review.
The veteran need take no action until otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet.App. 369 (1999). The purpose
of this remand is to preserve the veteran's due process
rights and to obtain additional procedural and evidentiary
development. No inference should be drawn regarding the
final disposition of the claims in question as a result of
this action.
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs